How should the San Antonio court proceed after SCOTUS rules on Section 5?

That’s what the San Antonio judges in the redistricting case asked the parties to help it figure out.

In its order, the court told parties what has been widely assumed – namely that the panel would “not issue any opinion, if at all, under after the Supreme Court resolves the Section 5 matters.”

However, the court also showed concern for the upcoming Texas election schedule, asking the parties for their opinions on how “the Court would need to proceed under” various alternative section 5 scenarios.

This included asking the parties for ”a realistic time estimate on how long it would take for the Court to complete its task while still leaving sufficient time for local election officials to implement any necessary changes prior to the 2014 election cycle, assuming no postponement of statutory deadlines.”

Among the lengthy list of questions asked by the court are:

What further steps would need to take place if section 5 is found to be unconstitutional?

If section 5 is upheld but the Texas redistricting case is pending on appeal, would the “Court would be required to issue interim maps for the 2014 elections?”

If so, what map would the court use as the benchmark in drawing new interim maps?

What would happen if the Supreme Court remanded the preclearance case to the D.C. panel for further proceedings?

Under what circumstances would section 2 issues and constitutional claims have to be decided?

What additional evidence would be needed to decide those claims? And to the extent could the court rely on findings in the preclearance decision of the D.C. court?

The court asked that the parties’ advisories be filed by March 15, 2013, with any optional responses to other parties’ advisories to be filed by March 25. The order said the panel would decide whether to hold a status conference after reviewing the parties’ submissions.

Pretty complex stuff. What happens elsewhere after SCOTUS rules, especially if SCOTUS knocks down Section 5, is mighty complicated as well. Rick Hasen pondered this a little while ago.

One possibility is that nothing happens after Section 5 falls and minority voters in covered jurisdictions lose their important bargaining chip. Then, expect to see more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.

The fight over these rules will be mostly political, not legal. I do not expect many successful constitutional cases or cases under Section 2 of the Voting Rights Act – a different provision which applies nationwide but is harder for plaintiffs to win.

Another possibility, and one which seems fairly likely, is that negative public reaction to the Supreme Court striking down a crown jewel of the civil rights movement creates a political opening for Congress to enact a new piece of voting rights legislation. The GOP may also be eager to support some kind of legislation to blunt the likely fallout from an adverse action from the Roberts Court.

The choice of post-Shelby County legislation threatens to split the civil rights and election reform community over whether any New Voting Rights Act will be race-based – focused on protecting minority voters in particular – or whether the law will be focused on election reform more broadly, though still in ways that could significantly help minority voters.

A race-based reform could try to impose something like Section 5 nationally, though without the requirement that jurisdictions get permission before changing their voting rules. For example, a New Voting Rights Act could give groups challenging a new voting practice anywhere in the country the opportunity to show that the law makes minority voters worse off. It is unclear, at this point, whether such a race-conscious law would survive Supreme Court review after the Shelby County case and the Fisher affirmative action case.

An election reform-based proposal, in contrast, could set national standards for lines at the polls, ensure access to voting, rein in gerrymandering, create a uniform federal ballot design or address other issues, such as modernizing voter registration. If legislation comes, a new national standard seems inevitable. Even if we need a special law for election disaster zones like Florida and Ohio, it is hard to see the political path for Congress to pick a new set of jurisdictions to be subject to special federal control.

Even non-race based reforms could raise potential constitutional problems. This term the Supreme Court is hearing another case, out of Arizona, which raises questions over how much power Congress has over states to set the rules being used in federal elections. In the Arizona case, the specific question is whether Arizona officials must accept a federal voter registration form that does not include citizenship information required by Arizona law.

Hasen reminds us of why we have Section 5 in the first place, so read the whole thing, then go read what Emily Bazelon and Nina Perales have to say about Section 5 as well. It seems abundantly clear to me that Section 5 is still needed, and that if there’s a need for remediation it should be to extend Section 5 to the whole country, not to take it away from the places that brought it on themselves and continue to demonstrate why they can’t be trusted. All I know at this point is that if you were nervous about the Obamacare ruling, you should be nervous about this. The Express News has more.

8 Comments

Section 5 should be ruled unconstitutional, both because the extraordinary requirement of federal review of locally passed laws is excessive, and because only certain governments are subject to this oversight. States in which black voters are least likely to vote, such as Washington and Colorado, are uncovered, while in many of the Southern states black voters now vote at higher rates than their white neighbors. Indiana can pass a voter ID bill and have it take effect right away, but Texas or South Carolina or Georgia must submit their laws to federal agency approval. Section 2 is an adequate remedy for any group which believes their voting rights are harmed by a government districting plan or change of a polling site or reduction by a few days of early voting.

The real world effect of the Voting Rights Act can be seen in the crazy districting plans which still inflict damage here in Houston. In my neighborhood a single block of the civic club was placed in a different voting district, for the reason that that block had a majority of Hispanics on it due to an apartment complex on the other half of the block. So much for keeping neighborhoods whole within districts.

Look at the boundary between precincts 54 and 58 in Harris County. The reason for this convoluted boundary, which causes all sorts of confusions on a typical election day, is that at the time of drawing these boundaries in 1990 by the Democrat state legislature, the individual city blocks in 54 were either majority black or majority Anglo, while the blocks in 58 were majority Hispanic. This slices a least three civic clubs and neighborhoods into slivers, ineffective for seeking help from officeholders, confusing to voters, campaigners, mailing advocacy literature, etc.

Talking to Nina Perales, the lawyer for the civil rights organization MALDEF, who told me the story of congressional District 23, I was reminded of Section 5’s traditional purpose and its ongoing significance. “It is critically important to us,” Perales said. “The essence of Section 5, the real heart, is that it prevents gamesmanship. Section 5 means when you remove one barrier, the jurisdiction can’t just come in with another one. From the Latino perspective, you see this particularly when a minority community is growing.”

Her point isn’t that without Section 5, the Latino voters of Texas would have no recourse. They’d still have Section 2 of the Voting Rights Act, which allows minorities to sue when a voting practice discriminates on the basis of race or ethnicity. This part of the law applies anywhere in the country. But it’s got fewer teeth than Section 5. The protections of Section 2 kick in only after lengthier litigation, usually giving an incumbent like Canseco another term in office to consolidate his power. Or, as Perales put it, “the first election after redistricting goes to the discriminators.”

A world in which Indiana and Pennsylvania and everywhere else were subject to Section 5 would be a much more equitable world than one in which no one were subject to Section 5.

Perales and MALDEF view Hispanic Republicans like Bonilla or Canseco who receive some slice of support from Hispanics voters as inauthentic representatives of Hispanic political interests. But this all assumes that all Hispanics think and vote alike, or that a Hispanic candidate who gets 35% support from fellow Hispanics is not really representing the group’s interests.

The problem with extending Section 5 to the whole nation is that “enlightened” jurisdictions like New York and Minnesota (or Chicago?) cannot imagine being forced to submit a request to move a polling place to approval in DC before they can have their school board election, and to prove in advance that each minor change of location is not somehow less favorable to the Hispanic or black voters who live closer to the old voting site. And some VRA advocates claim that the huge number of approvals required would clog up the system and prevent effective enforcement against those jurisdictions which they consider are really trying to discriminate.

A minor point re: precincts 54 & 58 … the jurisdiction that seems to be keeping those precincts formed in that manner is HISD. If District 7 were to cede the land east of the bayou to District 1, they could eliminate the awkward divide – either by allowing the County to divide them more cleanly or by pairing them for election purposes.

At first glance, all other jurisdictions that I see leave that area alone. I think there are a number of legitimate issues of neighborhood splits by precinct lines that can be addressed by a Tax Assessor’s office being diligent about redistricting and working the process to minimize them where possible.

I hope when the dust settles after the last bit of redistricting this decade that this jagged boundary can be eliminated at last, but it is much easier to split precincts apart than to reunite them. And these two are but representative of hundreds split in the county as a result of application of the VRA. In 1990 we went from about 600 precincts to more than 1300.

My understanding is that consolidation is awaiting the final maps for congress, state house, and senate which are still being litigated.

Greg, I think the HISD split is not an impediment to rejoining precincts. 42.005 of the Election Code does not include local school board districts, apparently.

Voter_Worker, I have been meeting with commissioners on this for more than a decade.